Governor Justice has approved significant legislation protecting businesses from COVID-19 lawsuits, promoting the establishment of public charter schools, and increasing oversight of local boards of health. As of yesterday, no more new bills may be introduced in this Regular Session of the West Virginia Legislature unless they are originated by a standing committee. Of the 2,010 bills introduced, 49 have been enacted, including bills that provide for the award of attorneys' fees in consumer actions and provide regulatory flexibility for financial institutions, among others. In the meantime, the Governor continues to hold public events promoting his comprehensive tax package, which includes an immediate partial elimination of the personal income tax, with tax increases in certain other areas.
On the other hand, the House of Delegates finance committee originated its own personal income tax relief bill yesterday, as House Bill 3300. In a nutshell, the House of Delegates proposal is a more incremental approach compared to what Governor Justice proposed, outlining gradual income tax elimination over 12 years. It would establish a “personal income tax reduction fund,” allowing tax rates to be reduced when the fund reaches a set threshold. The first envisioned personal income tax cut is $150 million. The House announced earlier today that a full fiscal note for House Bill 3300 will be available by the end of the week, and before the full of House of Delegates will vote on the bill.
During the legislative process, there are certain critical deadlines imposed by the Legislature that impact the consideration of pending bills and their chances of success. Those remaining dates are as follows:
- March 28: Bills are due out of committee in house of origin.
- March 31: Last day to consider bills on third reading in house of origin ("Cross Over").
- April 10 (midnight): Session ends.
Governor Justice approved Senate Bill 277, the West Virginia COVID-19 Jobs Protection Act, which provides simply that there is no claim against any person, business, entity, health care facility or provider, first responder, or volunteer for any loss, including death, arising from COVID-19, COVID-19 care, or impacted care. "Impacted care” is defined as care offered, delayed, or otherwise adversely affected at a health care facility or to a health care provider during the COVID-19 emergency that impacted the facility’s or provider’s response to the COVID-19 emergency. The new law provides immunity to any person that designs, manufactures, sells, distributes, or donates a product in response to COVID-19 that is utilized by any person, government entity, business entity, health care facility or provider, first responder, or volunteer resulting from the product’s manufacturing or design, or a failure to provide proper instructions or sufficient warnings. Finally, a special procedure in medical malpractice cases is created where a defendant raises immunity arising from "impacted care" as a defense. In such cases, that issue must then be separately investigated and, if it is found that the claim arises from "impacted care," the case must be dismissed. There is an exclusion from the protections afforded by the bill for any intentional conduct with actual malice. The law applies retroactively from January 1, 2020, and to any cause of action accruing on or after that date.
Governor Justice also signed into law House Bill 2012. The new law now will make it more likely that public charter schools become part of the K-12 educational landscape in that it increases the number of charter schools from three to 10 statewide and establishes the Professional Charter School Board as an additional authorizing agency for charter schools, thus by-passing what may have been a barrier to their recognition under existing law, the county boards of education. In addition, that Board also may recognize up to two statewide virtual charter schools. The law is effective on June 1, 2021.
With the approval of Senate Bill 12, there will be more local political oversight and control over rules promulgated by health boards. The new law, which goes into effect June 2, 2021, requires a 30-day public comment period for new or amended rules and authorizes county commissions to approve, disapprove, and even amend such health rules. Where there is joint control over a health department, such as between a municipality and a county, but only one of those entities approves a new or amended rule, then such rule would be in effect only in the approving jurisdiction. The law would not affect existing rules, unless such are amended by the health department. Finally, it provides that local health departments would come under the control of the state health officer during any state of emergency in that county.
Work stoppages or strikes by public employees are now illegal under Senate Bill 11, which became law without the Governor's approval. Among other things, the law now codifies existing case law by declaring any work stoppage or strike by public employees to be unlawful. An employee is considered to be participating in a concerted work stoppage or strike if, on any day during a concerted stoppage or interruption of work, the employee does not report to work and is not on leave, recognizing that leave may not be used to participate in a strike. If an employee remains employed notwithstanding participation in a work stoppage or strike, the county board of education shall withhold their prorated salary or hourly pay of each employee for each day they participate in the same. The state board may not grant a waiver to a county board of education for its noncompliance with the 200-day minimum employment term or the 180-day minimum instructional term requirements if such noncompliance is the result of a concerted work stoppage or strike.
The Legislature enacted Senate Bill 295, Governor Justice's proposed amendments to the West Virginia Economic Development Authority's broadband loan insurance fund, without any opposition. Among other things, the bill codifies the provisions of the Governor's 2020 executive order that will position the state and its broadband providers well for participation in the Federal Communication Commission's Rural Digital Opportunity Fund ("RDOF") programs. The bill has been presented to the Governor who has until midnight on March 27 to act on it.
Other bills of interest enacted by the Legislature and are pending approval by the Governor who has five days, excluding Sundays, after presentment to act thereon include:
Senate Bill 5 sets forth procedures and standards by which attorneys' fees may be recovered under the West Virginia Consumer Credit & Protection Act. The bill essentially codifies certain factors considered by a court for an award of attorneys' fees such as the time and labor required; novelty and difficulty of the questions presented; the skill requisite to perform the legal service properly; and the experience, reputation, and ability of the attorneys. Also, it provides a process by which offers of judgment are evaluated. Simply stated, if a defendant makes an offer of judgment that is rejected by the plaintiff, the plaintiff may not recover fees or expenses from the date of the offer through the entry of judgment if the final judgment is one of no liability or if the final judgment obtained, exclusive of attorneys' fees and expenses, is less than 75 percent of the offer. If the judgment entered does not exceed 75 percent, the defendant may be entitled to reasonable fees and expenses incurred from the date of the offer to the entry of final judgment if the court finds that the plaintiff acted without substantial justification or without good faith in rejecting the defendant’s offer. Finally, the bill provides that a prevailing party may be entitled to fees and costs if the court determines that the opposing party presented a frivolous claim or defense. In that event, the court would hold a separate bifurcated hearing wherein it shall make a determination of whether the frivolous claims or defenses were asserted and to award damages, if any, against the party presenting the frivolous claims or defenses. The provisions of this bill shall apply to all causes of action filed on or after the effective date of these amendments to the West Virginia Consumer Credit & Protection Act. This bill has not yet been presented to the Governor.
House Bill 2764 was enacted by the Legislature with only two members voting in opposition. Simply stated, the bill would allow the Division of Financial Institutions to enter into agreements with state, federal or foreign regulatory agencies to allow persons who make an innovative financial product or service available in West Virginia through the regulatory sandbox program to make their products or services available in other jurisdictions and to allow persons operating in similar regulatory sandboxes in other jurisdictions to make innovative financial products and services available in West Virginia. The regulatory sandbox concept was created by the West Virginia Legislature in 2020 and is designed to enable entities that would normally require licensure in West Virginia to test an innovative financial product or service for a limited period of 24 months. At the conclusion of that time period, if the test of the product or service has been deemed successful, the entity would be able to continue operating in West Virginia subject to any appropriate licensure requirements. The program is intended to encourage start up activities and entrepreneurship. This bill has not yet been presented to the Governor.
House Bill 2013 creates publicly funded education savings accounts through the Hope Scholarship Program. The program is for public school students interested in switching to private or home school and would give parents the option to use a portion of their per-pupil expenditure from the state School Aid Formula for certain educational expenses, such as private school tuition, tutoring, educational learning aids, standardized tests, and other qualified expenses. According to present estimates, that amount would equal to about $4,600 a year to start, but that could fluctuate depending on the annual state School Aid Formula.
The total cost to the state for its initial rollout, according to a fiscal note provided by the West Virginia Department of Education, is expected to cost the state about $23 million a year, though that amount may rise dramatically after 2026 when all private school or home school students will be eligible for the scholarship. The bill has not yet been presented to the Governor.
House Bill 2009 limits the use of wages and agency shop fees for political activities and prohibits employers from withholding or diverting any portion of an employee’s wages or salary for political activities without express, written annual authorization. This prohibition against withholding or diverting wages for political activities applies to any agreement entered into, modified, renewed or extended on or after July 1, 2017. The bill has not yet been presented to the Governor.
Finally, these significant bills of interest are still working their way through the legislative process:
Senate Bill 275, which creates an Intermediate Court of Appeals remains pending before House Finance. The bill now establishes a statewide intermediate court of appeals with a single three-judge panel. The initial judges are to be appointed by the Governor, with the advice and consent of the Senate, to staggered terms. At the expiration of their initial terms, the full term of the office would be 10 years and would be filled by the voters in non-partisan elections. The Intermediate Court of Appeals would not have any original jurisdiction and, after June 30, 2022, would have appellate jurisdiction over such matters as final judgments or orders of a circuit court in civil cases, final judgments or orders of a family court, and decisions of an agency or an administrative law judge. Appeals from its decisions to the Supreme Court of Appeals would be taken by discretion. The Intermediate Court would not have jurisdiction over certain matters such as certified questions, interlocutory appeals, or extraordinary writs. Even still, and upon motion, a party may bypass the Intermediate Court in certain cases of fundamental importance or involving exigencies in which time is of the essence. The bill alters the reorganization of the workers' compensation appeals by abolishing the Office of Judges after September 30, 2022 and transferring its duties to the existing three-judge panel of the Board of Review. The Intermediate Court then would have exclusive appellate jurisdiction over all decisions of the Board of Review after June 30, 2022. The annual cost of operating this court is expected to be just over $2 million.
HB 2024 and SB 1
House Bill 2024 relating to telemedicine was amended by the Senate and returned to the House yesterday. As introduced, this bill merely removed the prohibition of audio-only telehealth and provided a licensing and registration process by the appropriate board for out-of-state providers. After it passed the House, the Senate Health & Human Resources Committee took it up and re-inserted all of the provisions of Senate Bill 1, which had been previously set aside by the House Health Committee. Now, the amended House Bill 2024 recognizes audio-only telehealth; limits telehealth services to a maximum of one year before requiring an in-person appointment; permits prescribing of certain controlled substances to established patients; provides the licensing boards with greater oversight of out-of-state applicants; and, importantly, reestablishes payment parity for services provided via telemedicine and those provided in-person. It remains unclear how the differences between the two telemedicine bills will be reconciled.